“In the 2004 general election, the Department of Justice sent 1,463 federal observers to monitor 55 elections in 30 jurisdictions in 14 states. This year, that number will be close to zero despite the fact that 17 states have restrictive voting laws in effect for the first time in an election cycle where the political rhetoric has been extremely racially charged at the national level. Given the widespread support for this obviously effective program, how did we get to a 2016 general election where voters are less protected against racial harassment than at any time since the 1960s?”

-- Excerpt from a column by Julie Fernandes, on August 9 in the online edition of Democracy Journal, a publication of opinion and analysis. Answering her own question, she put the blame on the Supreme Court and Congress.

“In the past, we have relied heavily on election observers – specially trained individuals who are authorized to enter polling locations and monitor the process to ensure that it lives up to its legal obligations. Unfortunately, our use of observers is largely tied to the pre-clearance coverage formula that the Supreme Court found to be unconstitutional in Shelby County [v. Holder] and so our ability to deploy them has been severely curtailed…[The decision] has forced the Justice Department to rely much more on local groups and individuals to alert us to potentially unlawful acts.”

– Excerpt from a speech by Attorney General Loretta E. Lynch on July 15 to a national convention in Washington of the League of United Latin American Citizens.

WE CHECKED THE CONSTITUTION, AND…

State governments have the main duty, under the national Constitution, to run the nation’s elections, although Congress can sometimes override the states’ management of voting in federal elections if there is a strong enough national interest. In addition, the Fifteenth Amendment confers explicit power on Congress to enforce the promise that “the right to vote shall not be denied or abridged…on account of race, color, or previous condition of servitude.”

In 1965, Congress used that constitutional authority to pass the Voting Rights Act, which has since come to be known as the most effective law ever passed to protect the voting rights of minorities. The Act’s strongest provisions, however, have not been in effect for the past three years, as a result of a Supreme Court decision, coupled with a lack of interest in Congress in proposals to modify and then reinstate those provisions.

The 1965 law was Congress’s way of reacting to the past failure of government officials to keep up with the steadily changing efforts by state legislatures to make it more difficult for minorities to vote. Previously, such changes could only be challenged one at a time in court, so lawsuits never fully caught up with the pace of new restrictions.

Congress decided that state and local governments that had a proven history of racial bias in voting had to notify the government of any plans to change voting laws or rules, and they had to get approval in Washington, D.C., for any such proposed change. Without approval, no planned change could occur. This was a major cutback for state and local control of elections, in those states where this pre-clearance requirement applied – that is, all or parts of 11 states.

Along with that pre-clearance regime, the 1965 law gave the federal government the authority to send federal observers to those 11 states and their covered county governments to watch for discriminatory treatment of minority voters as they showed up to vote.

Congress, however, did not keep up to date the formula that was used to trigger either the pre-clearance requirement or the use of election observers. The Supreme Court, in the 2013 ruling in Shelby County v. Holder, ruled that racial politics had changed in the states and counties covered by those requirements, so applying the special obligations of the Voting Rights Act to them alone was unconstitutional. The ruling left it up to Congress to salvage those requirements by devising a new, up-to-date formula. In the three years since that ruling, Congress has taken no action, although proposals to do so have long lists of sponsors.

Much has been written in political and academic commentary about the effect of scuttling the pre-clearance requirement, and with the effect that that has had – the passage of many new vote-restricting laws, including in those states previously covered by pre-clearance. Those laws can now be challenged only one at a time, after they have gone into effect because only then can their discriminatory impact be shown.

One of the highest-profile efforts to challenge these new laws has come in North Carolina, where the legislature quickly responded to the Supreme Court ruling by adopting multiple new provisions, which a federal appeals court has now struck down (a decision that the Supreme Court has just left intact). The appeals court ruling was based upon another part of the 1965 Act, but that is the part that only allows court challenges to new voting laws after they have been enacted and, in most cases, already taken effect.

Under that alternative approach, if a court rules that a new voting limitation was the result of intentional racial discrimination, it has the authority to put that state or jurisdiction back under a pre-clearance obligation and, in addition, it can approve the use of federal election observers in that jurisdiction. The North Carolina lawsuit did result in a ruling that the law was intentionally biased against minority voters, but the appeals court chose to limit its decision to blocking enforcement. It explicitly opted not to impose pre-clearance or to authorize election observers.

The Justice Department and civil rights organizations, however, will continue to try to persuade courts as further lawsuits go forward to take the extra steps of reviving pre-clearance and sending federal observers. And, whether it is a promising maneuver or not, they also will continue trying to persuade Congress to write a new coverage formula for the Voting Rights Act’s more demanding features. Even if Congress were willing, that would not be easy because of the wide disparity in how state legislatures deal with minority voters’ rights.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com.

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